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Ethical considerations
Published in Hung N. Winn, Frank A. Chervenak, Roberto Romero, Clinical Maternal-Fetal Medicine Online, 2021
Frank A. Chervenak, Laurence B. McCullough
The ethical principles of beneficence and respect for autonomy play a complex role in obstetric clinical judgment and practice. There are obviously beneficence-based and autonomy-based obligations to the pregnant patient: the physician’s perspective on the pregnant woman’s health-related interests provides the basis for the physician’s beneficence-based obligations to her, whereas her own perspective on those interests provides the basis for the physician’s autonomy-based obligations to her. Because of an insufficiently developed central nervous system, the fetus cannot meaningfully be said to possess values and beliefs. Thus, there is no basis for saying that a fetus has a perspective on its interests. There can therefore be no autonomy-based obligations to any fetus. Hence, the language of fetal rights has no meaning and therefore no application to the fetus in obstetric clinical judgment and practice despite its popularity in public and political discourse in the United States and other countries. Obviously, the physician has a perspective on the fetus’s health-related interests, and the physician can have beneficence-based obligations to the fetus, but only when the fetus is a patient. Because of its importance for obstetric clinical judgment and practice, the ethical concept of the fetus as a patient requires detailed consideration (4).
The law, medicine and women’s rights
Published in David M. Luesley, Mark D. Kilby, Obstetrics & Gynaecology, 2016
However, one thing must be made clear at the outset. In law, the fetus has no rights, and therefore to talk about fetal rights is misleading. None the less, it is generally conceded that the embryo or fetus of the human species is worthy of some respect.3 To say this, however, is quite different from asserting that it is a rights holder and worthy of equal consideration with the pregnant woman.
Hypertensive Disorders of Pregnancy
Published in Tony Hollingworth, Differential Diagnosis in Obstetrics and Gynaecology: An A-Z, 2015
The definitive cure for pre-eclampsia is delivery of the fetus and placenta. The challenge involves balancing the risks of continuation of the pregnancy to both the mother and the fetus against the risks of prematurity to the fetus. Ultimately maternal well-being supersedes fetal rights, and in very severe cases delivery may be warranted with the knowledge that the fetus is non-viable. Once 37 weeks’ gestation is reached, delivery is recommended even if pre-eclampsia is mild.
Images, science, and rights of the early modern fetus
Published in Baylor University Medical Center Proceedings, 2021
Carried even further, the possibility of creating another biologic organism from a cloned cell begs the question of whether or not there is the need for gametes and what property/personal rights might be associated with the DNA residing in any cell. Yet from the legal and fetal rights perspective at a federal level, Roe v. Wade bases its ruling on the timing of viability and thus the right for life of the fetus at 23 to 24 weeks’ gestation.16
Childbirth Is Not a Medical Emergency: Maternal Right to Informed Consent throughout Labor and Delivery
Published in Journal of Legal Medicine, 2018
Though the physician’s recommendation for a cesarean delivery could be for the benefit of the mother, the fetus, or both,129 in most circumstances, the surgery is recommended for the sake of fetal health and safety.130 The mother’s refusal to consent to a surgical delivery is, therefore, perceived by medical providers—and, ultimately, by the court as well—as a conflict between the mother and her unborn child.131 Even if the mother is well intentioned, her refusal to consent to a cesarean delivery prevents the performance of the procedure, thus subjecting herself and her fetus to otherwise avoidable medical risks. In the minds of many obstetric providers, the viable fetus, although housed within the mother’s body, is an independent patient.132 Accordingly, the physician senses a professional duty not only to the pregnant woman but also to the unborn child. In the physician’s best clinical judgment, the risks to the fetus in the absence of a cesarean delivery are substantial. The physician, therefore, finds the pregnant woman’s refusal to undergo the cesarean delivery, which under modern obstetric circumstances is a safe and effective procedure, entirely unreasonable. Because the mother’s refusal of a cesarean delivery prevents the fetus from accessing obstetric care that is medically necessary for fetal well-being, obstetric providers may turn to the courts on the fetus’s behalf.133 The courts then weigh the maternal risks in undergoing a cesarean delivery against the fetal risks in attempting a vaginal birth.134 Based on this balancing of maternal and fetal rights, a court may compel the pregnant woman to undergo a cesarean delivery in order to prevent the anticipated and significant risks associated with labor.135 When a court orders a cesarean section, the delivering physician is not required to obtain the pregnant woman’s consent for the surgery.136 Rather, the court order acts as a surrogate consent and authorizes the physician to perform the procedure.137
Implementing Expanded Prenatal Genetic Testing: Should Parents Have Access to Any and All Fetal Genetic Information?
Published in The American Journal of Bioethics, 2022
Michelle J. Bayefsky, Benjamin E. Berkman
A third attempt to justify state regulation of prenatal genetic testing could be founded on the state interest in protecting the rights of the fetus. The boundaries of the state’s interest in fetal rights has been heavily adjudicated and current federal law defines fetal viability as the point at which the state’s interest in the life of the fetus outweighs the mother’s right to privacy. Aside from the life of the fetus, some states have generated laws designed to protect fetal well-being. Twenty-three states consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and three states consider it to be grounds for civil commitment (Guttmacher Institute 2020b). Courts have not yet determined whether fetal genetic testing can be restricted on the grounds that it constitutes child abuse, is against the future child’s best interest, or violates the autonomy of the future child. While a full legal analysis of this question is beyond the scope of this paper, we contend that legal restrictions on prenatal genetic testing for the sake of the fetus’s rights and interests would be legally dubious and could only apply to a very limited set of information. That is, if the constitutional right to privacy protects a woman’s right to have an abortion for any reason until viability, it should also protect her right to access information that might be relevant to her decision of whether to terminate the pregnancy. Restricting access to fetal genetic information that might be useful for termination decisions unjustly hinders a woman’s ability to exercise her right to an abortion. Moreover, if a woman planned to use information to prepare for a child with special needs, her rights and interests would be aligned with the fetus’s and the state interest in protecting the life of the fetus would not be relevant. Perhaps legal intervention could be justified for non-health-related information for the sake of the fetus’s right to an open future, but it is questionable whether the state should enact laws designed to protect future adults who are not currently in existence. (It is already controversial to assert that the law should protect people from information they prefer not to know, given the lack of legal precedent to that effect (Berkman 2017).) In practice, we worry that restrictions on fetal genetic testing would not be narrowly tailored to the purpose of limiting access to non-medical information. Instead, they may be primarily aimed at decreasing access to abortion rather than affirming the rights of parents and advancing the welfare of future children.